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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 5960 (KLR)

Kiarie & 2 others (Suing as the Chairman, Secretary and Members of Varsity Ville Residents Association) v Ruiru Academy Limited & 5 others (Environment and Land Case 510 of 2015) [2025] KEELC 5960 (KLR)

Environment and Land Court
27 August 2025
MCMbogo C.G.
1,576 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out an amended land claim because the defendant had already agreed to the amendment, making their later objection pointless.

What this practically means

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Executive summary

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The 2nd defendant/applicant moved the court by notice of motion dated 5th March 2025, brought under Order 2 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking the striking out of the plaintiffs' amended plaint and costs. It argued that the joinder of the National Land Commission as proposed 6th defendant was unnecessary, that the issues raised had already been determined in Thika ELC Petition 733 of 2017 (renamed ELC 29 of 2020, judgment delivered 28th July 2022), rendering the amended plaint res judicata, and that the amendment was an abuse of process and procedurally defective because the draft amended plaint was allegedly not annexed or served. The plaintiffs opposed, showing that the draft amended plaint was annexed at pages 59 to 68 of the supporting affidavit to their application dated 23rd July 2024; that leave to amend was granted by consent on 24th September 2024, counsel for the 2nd defendant expressly recording no objection; and that post-judgment irregular transfers of revoked parcels justified the NLC's joinder. The court held that striking out pleadings is discretionary and a last resort; the amendment was allowed by consent, no fraud or coercion was alleged, and the consent was never sought to be set aside. Applying D.T. Dobie & Co. Ltd v Muchina, the court found no reason to strike out the amended plaint, dismissed the application as devoid of merit, and awarded the plaintiffs the costs of the application. Judgment delivered virtually on 27th August 2025.

Key legal issues

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01

Whether the amended plaint should be struck out as res judicata or an abuse of process

Holding

No. The amended plaint was filed with leave granted by consent, a draft was annexed to the application, and the applicant never sought to set aside that consent for fraud or coercion. Striking out is a last resort.

Reasoning

The court observed that the decision to strike out pleadings is discretionary and a last resort. Leave to file the amended plaint was granted on 24th September 2024 by consent, with counsel for the 2nd defendant expressly recording no objection. The draft amended plaint was annexed to the application of 23rd July 2024. The applicant neither alleged the consent was obtained by fraud or coercion nor sought its setting aside. Applying D.T. Dobie & Co. Ltd v Muchina, the court found no basis for striking out and dismissed the application with costs.

p. 4

Legal principles established

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  • Striking out of pleadings is a discretionary remedy of last resort
  • A suit should not be summarily dismissed unless it is plainly hopeless and incurable by amendment
  • A consent order granting leave to amend binds the parties unless set aside for fraud or coercion

Court orders

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  1. 1.The notice of motion dated 5th March 2025 is dismissed
  2. 2.The plaintiffs/respondents are awarded the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7

Cases cited (8)

  • Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others
    [1996] eKLR
  • ET v Attorney General & Another
    [2012] eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
  • Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR
  • Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd
    [2014] eKLR
  • Mungai v Ngunya & 3 others
    (Land Case E154 of 2023) [2024] KEELC 5820 (KLR) (31 July 2024) (Ruling)
  • Chemweno v Kiprop (Suing as the Legal Representative of the estate of Luka Kiprop Kiptai)
    (Environment and Land Appeal E006 of 2023) [2024] KEELC 4705 (KLR) (14 June 2024) (Judgment)
  • D.T. Dobie & Co. (Ltd) – v- Muchina
    [1982] KLR 1
Jurisdiction invoked
Order 2 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiarie & 2 others (Suing as the Chairman, Secretary and Members of Varsity Ville Residents Association) v Ruiru Academy Limited & 5 others (Environment and Land Case 510 of 2015) [2025] KEELC 5960 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5960/eng@2025-08-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.